Can a prosecutor threaten to pursue additional pending charges to discourage a convicted defendant from appealing?

Plain-English summary

The Committee was asked whether a prosecuting attorney could use the threat of pursuing additional pending complaints against a defendant who had been convicted at trial in order to discourage an appeal from that conviction.

The Committee concluded that such conduct was improper. It read DR 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration of justice) and DR 7-103 (a public prosecutor's duties not to bring unsupported charges and to disclose exculpatory evidence) as on point, and treated the purpose behind DR 7-105 (barring threats of criminal charges to gain advantage in a civil matter) as applying with even greater force in the criminal context, where the Code's comment described such a threat as "a species of duress." It cited EC 7-13 (a prosecutor's duty is to seek justice, not merely to convict), EC 7-14 (a government lawyer must not use the economic power of the government to harass), and EC 7-21 (the threatened use of criminal process as a subversion of that process), concluding that a government attorney bears a high responsibility to ensure the accused receives the full measure of defense, including the right to appeal.

The Committee qualified its answer. It said that not every disclosure by a prosecutor that other complaints are pending should be interpreted as a "threat." A prosecutor retains discretion over which cases to prosecute (EC 7-13), and defense counsel may, under DR 7-101(B)(1), exercise professional judgment to waive or not assert a client's rights where permissible; in some situations counsel may determine it is in the client's best interest not to appeal. The Committee cautioned that this acknowledgment should not be read to reopen the door to using the threat of additional prosecution to prevent an appeal, and it referenced ABA Informal Opinion 955 and Anders v. California on the obligation to take a criminal appeal.

Currency note

This opinion was issued in 1973, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. A prosecutor's special responsibilities are now addressed by Texas Rule 3.09 and ABA Model Rule 3.8, and conduct prejudicial to the administration of justice by Texas Rule 8.04 and Model Rule 8.4(d); the former DR 7-105 prohibition on threatening criminal charges was not carried forward verbatim into the Model Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: May a prosecutor threaten more charges to stop a convicted defendant from appealing?

A: No. The Committee concluded that a prosecutor should not do any act or take any position calculated to deny a criminal defendant his full rights of due process, which include the right to appeal.

Q: Which provisions did the Committee rely on?

A: It found DR 1-102(A)(5) and DR 7-103 on point, treated the purpose of DR 7-105 as applying even more strongly in the criminal context, and cited EC 7-13, EC 7-14, and EC 7-21 on the prosecutor's duty to seek justice and not to subvert the criminal process.

Q: Is it always a "threat" for a prosecutor to mention other pending complaints?

A: No. The Committee said not every disclosure that other complaints are pending should be interpreted as a threat; a prosecutor retains discretion over which cases to prosecute, and defense counsel may, under DR 7-101(B)(1), determine that it is in the client's best interest not to appeal.

Q: What did the Committee say about counsel's obligation to appeal?

A: It referenced ABA Informal Opinion 955 and Anders v. California, noting an obligation owed both to the client and to the court in such situations.

Background and rules framework

The opinion interprets DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 7-103 (a public prosecutor's duties), DR 7-105 (threatening criminal charges to gain advantage in a civil matter), and DR 7-101(B)(1) (waiving a client's rights), together with EC 7-13, 7-14, and 7-21, all from the former Texas Code of Professional Responsibility. The modern analogs are Texas Rule 3.09 and ABA Model Rule 3.8 (special responsibilities of a prosecutor) and Texas Rule 8.04 and Model Rule 8.4(d) (conduct prejudicial to the administration of justice).

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor), as the modern analog
• MR 8.4 (misconduct; conduct prejudicial to the administration of justice), as the modern analog
• DR 1-102(A)(5), DR 7-103, DR 7-105, DR 7-101(B)(1); EC 7-13, EC 7-14, EC 7-21 (former Texas Code of Professional Responsibility)

Cases:

• Anders v. California, 386 U.S. 738 (1967), counsel's obligation regarding a criminal appeal (cited via ABA Informal Opinion 955)

Other opinions cited:

• ABA Informal Opinion 955 ("Obligation to Take Criminal Appeal")

See also

• TX Ethics Op. 369: Criticizing a Trial Judge at a Post-Trial Press Conference
• TX Ethics Op. 619: Prosecutor Imposing Conditions on Copying Discovery for the Defendant
• TX Ethics Op. 615: District Attorney Prosecuting a Former Client Official

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-365/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_365.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

May a prosecuting attorney use the threat of prosecuting additional pending complaints against a defendant who has been convicted in a trial court so as to discourage an appeal from such conviction?

DR 1-102 and DR 7-103

DR 1-102 (A) (5) states as follows: "A lawyer shall not engage in conduct that is prejudicial to the administration of justice."

DR 7-103 (A) states: "A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause."

DR 7-103 (B) "A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment."

The above two quoted disciplinary rules seem to be effectively on point. DR 7-105 seems to state the matter quite clearly except that it is not directed toward a criminal matter. Such rule states "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." It can be readily seen, however, that the intent of the disciplinary rules are calculated to control the conduct of lawyers in such a fashion that no person involved in litigation, criminal or civil shall be denied a full and fair trial and due process of the law. The "COMMENT" pertaining to DR 7-105 describes a threat of criminal prosecution by an attorney to be "a species of duress and actionable as an unfair collection tactic." It is certainly arguable that if such a threat of criminal prosecution can be described as duress in the field of commercial law, it would surely be nothing less that in the field of criminal law; but would be even more reprehensible.

Ethical Comment (EC) 7-13 places a rather lofty responsibility upon a public prosecutor. EC 7-13 states in part as follows: "The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." It further places a responsibility upon the prosecutor to use restraint in the discretionary exercise of governmental powers. It recognizes that the prosecutor makes decisions effecting the public interest, and that these decisions should be fair to all during a trial. The Comment further recognizes that an accused is given the benefit of all reasonable doubts, and takes the position that the prosecutor should make timely disclosure to the defense of all evidence that tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.

EC 7-14 when speaking about a government lawyer in a civil action or an administrative proceeding, imposes "the responsibility to seek justice and to develop a full and fair record, and the further responsibility not to use his position or the economic power of the government to harass parties or to bring about unjust settlements or results."

From the above two referenced Comments, it can be seen that the government attorney has a high responsibility to see that an accused or convicted person has his full measure of defense afforded to him. Such full measure would surely include the right to an appeal.

EC 7-21 recognizes that "the criminal process is designed for the protection of society as a whole." And then defines the threatened use of criminal process as "a subversion of that process." And then the Comment states "the person against whom the criminal process is so misused may be deterred from asserting his legal rights . . . ." Then concludes "as in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system."

It must be kept in mind, however, that every advice or disclosure by a prosecuting attorney to a defense counsel as to the existence of other pending complaints in a situation of this kind, should not be necessarily interpreted as a "threat." The government attorney has a right to exercise discretion as to the selection of cases to prosecute (EC 7-13). It may be that the defense counsel will be placed in a position to make a determination under all of the known and existing facts as to what is best for his client. DR 7-101 (B) (1) states "In his representation of a client, a lawyer may, where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client." It seems to the Committee that in certain situations such as can exist in these circumstances, a lawyer may determine that it is in his client's best interest not to appeal from the adverse decision. In making such statement, however, it should not be interpreted that this opinion again opens the door to the use of threat of additional prosecution to prevent an appeal.

Such a statement should be considered in light of ABA Informal Opinion No. 955 -- "Obligation to Take Criminal Appeal" wherein the case of Anders vs. California 35 U.S. Law Week 4385, opinion by Justice Clark, indicates that there is not only an obligation to the client, but also to the court in such situations. And further, in ABA Informal Opinion 955, former ABA Cannon 30 (former Texas Cannon 28 now in substance DR 7-102 (A)) is quoted "The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. His appearance in court should be deemed equivalent to an assertion on his honor. That in his opinion his client=s case is one proper for judicial determination."

It is the opinion of the Committee that the above mentioned disciplinary rules and comments clearly indicate that a prosecuting attorney should not do any act or take any position calculated to deny any criminal defendant his full rights of due process in defending himself against criminal charges.

THREAT OF ADDITIONAL PROSECUTION TO ABATE APPEAL FROM JUDGMENT OF CONVICTION
Prosecuting attorney should not do any act or take any position calculated to deny criminal defendant's right to a full and fair trial.

Tex. Comm. On Professional Ethics, Op. 365 (1973)